Last edited: April 28, 2005

Appeal in Case of Gay Couple Ordered to Split Up Over Child, January 31, 2005

By Newscenter Staff

Annapolis, Maryland—An appeals court was told Monday that a lower court ruling that bars a man from living with his partner while raising his 12-year-old son is unconstitutional.

The argument was the center piece of a legal brief filed by Lambda Legal and the National Center for Lesbian Rights on behalf of [the Father. Names removed at the request of Lambda Legal].

The brief argues that the lower court ruling violates the U.S. Supreme Court’s 2003 decision on privacy.

[The Father] and his ex-wife, residents of Virginia at the time, separated when their son was four years old. For the next five-and-a-half years, the child lived with [the Father] and his partner, [the partner], in a suburban Virginia home the couple purchased together.

The home had a back yard and was near a good school, [the Father] noted Monday. Together, the two men provided a stable loving home, he said.

After the boy’s mother moved to Florida, she petitioned for custody. A Virginia court issued an order giving [the Father] physical custody of the boy but requiring [the partner] to move out of the family’s home.

In order to maintain two separate residences, the couple sold their house and moved into smaller apartments in Maryland. Though [the partner] visits his family as much as he can, the restriction keeps them all from living in the same home together.

“This child’s world was turned upside down all because a Virginia court issued a knee-jerk antigay custody restriction,” said Susan Sommer, Supervising Attorney at Lambda Legal.

“He lost his home, his school, his park and most importantly the proximity of the caring adult who has helped raise him. No one wins with this arrangement, and it’s imperative that the court step in and put the child’s interests first.”

A trial court in Maryland denied [the Father's] request to remove the restriction. In the appeal filed today, NCLR and Lambda Legal urged the Maryland Court of Special Appeals to remove the custody restriction because of the drastic decline in quality of life it has caused for the child, and also because it is unconstitutional.

The Virginia court based its decision on that state’s sodomy law, which was struck down, along with 12 others nationwide, in a U.S. Supreme Court ruling in 2003.

“[The Father] is a devoted parent who has done a tremendous job raising his son,” said Shannon Minter, Legal Director for the National Center for Lesbian Rights.

“[The partner] always has been a positive influence in the child’s life. There is no reason that [the Father] should not be able to live with his partner of nearly ten years, and the trial court was wrong to let this harmful and unconstitutional situation stand,’ Minter said.

Though the child’s mother opposes letting [the partner] move back into the home, she answered “I don’t know” to numerous questions asking her if she had concerns about [the Father] and [the partner] living together with the child. Lambda Legal and NCLR argue that the Virginia order doesn’t benefit the child, and instead harms him.

Attorneys for the mother will file a reply to today’s appeal before a date for oral arguments are set.

The case closely resembles that of Theron McGriff, an Idaho man who was told by a court he could not have visitation rights with his children while he lived with a male partner. Last year the Idaho Supreme Court upheld that ruling.

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